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Judge in Spain drops civil war probe

Spain's most famous judge abandoned a drive for a symbolic indictment of the late Gen. Francisco Franco and his regime, dropping a probe Tuesday into atrocities committed during the civil war.
/ Source: The Associated Press

Spain's most famous judge abandoned a drive for a symbolic indictment of the late Gen. Francisco Franco and his regime, dropping a probe Tuesday into atrocities committed during and after the country's ruinous civil war.

Judge Baltasar Garzon reluctantly yielded in a dispute over jurisdiction, and transferred the case to lower courts.

Garzon, a human rights and terrorism crusader known for going after Osama bin Laden and Chile's late Augusto Pinochet, launched a probe last month into the killings of tens of thousands of civilians by Franco supporters during the 1936-39 war and in the early years of his right-wing rule.

It was the first official investigation into a still-divisive period of history which had been taboo for many Spaniards, and was shaping up as another huge case for Garzon.

Crime against humanity
He argued that Franco and his cohorts engaged in a crime against humanity — Garzon cited a systematic campaign by Franco to eliminate opponents — and said this had no statute of limitations. The judge ordered the unearthing of 25 mass graves believed to hold remains of victims of pro-Franco militia.

Prosecutors at Garzon's National Court challenged him on grounds he lacked jurisdiction. They argued that such crimes were covered by an amnesty passed in 1977 — two years after Franco died — as Spain moved to restore democracy and focus on rebuilding their ruined nation rather than on reopening old wounds.

The National Court halted Garzon's probe pending resolution of the jurisdiction dispute. On Tuesday, Garzon in effect gave up. But he went out fighting.

In a blistering 152-page document, Garzon stuck firmly by his original arguments — that the Franco regime should be investigated for human rights crimes — even if it is difficult 70 years after the war ended and few suspects, even if identified, would be alive to stand trial.

It is one thing to declare Franco and company no longer criminally liable because they are dead, the judge wrote, but quite another "to grant them impunity, forgiveness and judicial oblivion, labeling their actions as mere political repression."

'Facts are the facts'
He added: "The facts are the facts. This judge is not making them up."

Garzon said he was going along with prosecutors who say judges in the towns where the mass graves are located should take over.

But he said he is doing this for expediency. He refused to accept their assertion that the killings and disappearances did not constitute crimes against humanity.

Rather, the judge said he was going along to get the process moving — and moving quickly.

Garzon said time is critical because DNA samples extracted from remains unearthed from the graves must be matched against living people and many relatives of those killed during the war are elderly.

Had the National Court ruled that Garzon did have jurisdiction as he argued, it would have set the stage for him to seek at least a symbolic indictment of the Franco regime, although not against the man himself because he is dead. His original probe had been seen as geared that way.

'Franco regime on trial'
The day after Garzon announced his investigation on Oct. 16, the nation's top-selling newspaper, El Pais, headlined its front-page story: "Garzon puts the Franco regime on trial."

Now, assuming the National Court allows exhumations to resume, the probe will be done in piecemeal fashion, without the prospect of the Franco regime being accused of crimes against humanity.

The Spanish civil war left an estimated half a million people dead, with both sides committing atrocities against civilians. Franco rose up against an elected, leftist Republican government and ousted it, fighting against Spaniards who backed that government.

Garzon essentially wanted to focus on people killed by the pro-Franco side. He has noted the Franco regime did a thorough accounting of pro-Franco civilians killed by the Republican side and gave them proper burials.